1617684 (Refugee)

Case [2020] AATA 5310

1617684 (Refugee) [2020] AATA 5310 (17 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617684

COUNTRY OF REFERENCE:                   Kenya

MEMBER:Dr Colin Huntly

DATE:17 November 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 November 2020 at 11:12am

CATCHWORDS

REFUGEE – protection visa – Kenya – particular social group – inter-tribal love marriage not approved by either family – general post-election, inter-tribal and inter-religious violence – first applicant’s previous student visa cancelled and period as unlawful non-citizen – second applicant’s visit to home country with no harm – ongoing relationships with some family members – no notification to department of changed circumstances – third country protection – East African Community (EAC) – state protection – best interests of Australian-born child – credibility – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 104, 423A

Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

BAJ16 v Minister for Home Affairs [2019] FCCA 1598

BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

CQG15 v MIBP [2016] FCAFC 146

Ex parte Applicant S154/2002 [2003] HCA 60

Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs (1996) 40 ALD 445

Iyer v MIMA [2000] FCA 52, [2000] FCA 1788

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

MIMA v Lay Lat (2006) 151 FCR 214

MIMAC v SZRHU (2013) 215 FCR 35

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

SDAQ v MIMA (2003) 129 FCR 137

Selvadurai v MIEA & Anor (1994) 34 ALD 347

Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

SZBEL v MIMIA (2006) 228 CLR 152

SZLGP v MIC [2008] FCA 1198

SZRTC v MIBP (2014) 224 FCR 570

SZSHV v MIBP [2014] FCA 253

WAGH v MIMIA (2003) 131 FCR 269

WAKK v MIMIA [2005] FCAFC 225

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 October 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958

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AGLC
1617684 (Refugee) [2020] AATA 5310
Case
[2020] AATA 5310
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse a protection visa. The applicants, citizens of Kenya, claimed they faced persecution due to inter-tribal and sectarian violence, and specifically due to their "love marriage" which was opposed by their families. The delegate had refused the visa, partly on the basis that the applicants might have a right to enter and reside in Uganda or Rwanda, both members of the East African Community, thereby potentially falling under the third country protection provisions.

The Tribunal was required to determine whether the applicants met the criteria for a protection visa, considering their claims of persecution in Kenya based on their inter-tribal relationship and the general violence in their home country. A key legal issue was whether the applicants could avail themselves of protection in Australia, or if they had a right to enter and reside in another country, specifically within the East African Community, which would preclude Australia from having protection obligations. The Tribunal also had to consider the applicants' credibility, the delay in lodging their application, and the impact of changed circumstances, including their marriage and the birth of a child, on their claims.

The Tribunal considered the applicants' migration history, including the cancellation of one applicant's student visa and their subsequent period as an unlawful non-citizen. It noted that the applicants had not notified the Department of significant changes in their circumstances, such as their marriage and the birth of their child, until well into the review process. The Tribunal also examined the provisions regarding third country protection, specifically section 36(3) of the Act, which states that Australia may not have protection obligations if a non-citizen has not taken all possible steps to avail themselves of a right to enter and reside in another country. However, this exception is qualified by section 36(5), which prevents its application if the non-citizen has a well-founded fear of being returned to a country where they would face persecution. The Tribunal also considered the presumptive citizenship of the applicants' child under Kenyan law.

The Tribunal affirmed the delegate's decision to refuse the protection visa. It found that the applicants had not established a well-founded fear of persecution in Kenya that would engage Australia's protection obligations. The Tribunal was not satisfied that the applicants had taken all reasonable steps to avail themselves of protection in a third country, particularly in light of their membership in the East African Community. Furthermore, the Tribunal found issues with the applicants' credibility, including inconsistencies and the failure to disclose material changes in their circumstances promptly.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This finding was based on Kenya’s membership of the East African Community (EAC). In particular, the delegate found that the applicants were effectively barred from eligibility for the visa that is the subject of this application because of an apparent complying right to enter and reside in either Uganda or Rwanda, which are members of the EAC common market.BACKGROUNDApplicants’ migration history Applicant 1 entered Australia [in] February 2013 travelling on a [Student] visa. This student visa was cancelled on 2 June 2015 at which point the applicant became an unlawful non-citizen. Applicant 2 entered Australia [in] July 2014 travelling on a [Student] visa. Applicant 1 applied for a Protection visa on 21 February 2016. Applicant 2 was included in the Protection visa application as a member of the same family unit as Applicant 1. Applicant 2 made no separate claims for protection in this application. Applicant 2 departed Australia for Kenya [in] December 2016 and returned to Australia from Kenya [in] January 2017. Applicant 2 continued to hold a valid student visa until 15 September 2018. On 20 November 2020, Applicant 2 was granted a [different Temporary] visa, which expires on 20 November 2020. The applicants attended a Protection visa interview with a delegate of the Minister for Immigration and Citizenship on 30 September 2016. This application was refused by the delegate by written decision dated 3 October 2016. The applicants seek review of this decision by the Tribunal as presently constituted.Proceedings before the Tribunal The applicants appeared before the Tribunal to give evidence and present arguments on three occasions. Firstly, in person on 21 January 2020; then, via MS Teams on 5 August 2020 a second hearing was held (also via MS Teams) which was adjourned to, and concluded on, 24 August 2020. The applicants were initially represented in this application by a registered migration agent. However (following an acknowledgement by the agent at the first hearing of 21 January 2020 that they had provided the applicants with unsatisfactory advice in the conduct of their engagement), by email dated 7 February 2020 the applicants advised the Tribunal that they had withdrawn their instructions to their former migration agent. From this point in proceedings, the applicants elected to proceed without the assistance of a registered migration agent. All Tribunal hearings were held in the English language. Identity The applicants provided a copy of their Kenyan passports to the Department with the application for protection. The Tribunal has no reason to doubt the validity of these documents. The Tribunal has reviewed the passports and has had the opportunity to interview the applicants on three occasions. On the basis of the information before it, the Tribunal finds that the applicants are citizens of Kenya which is also the receiving country for the purposes of the refugee and complementary assessments. DECISION SUMMARY The issue in this case is whether the applicant satisfies the requirements for a protection visa in Australia for the essential and significant reason of historic and on-going inter-tribal and sectarian violence in Kenya (election related and other); and persons who are in either or both love marriages and inter-tribal relationships and who face implacable opposition from their families of birth. In the alternative, whether the applicants satisfy the requirements for a protection visa in Australia on complementary grounds due to family or societal stigmatisation, ostracisation and dislocation if they were to return to Kenya, now or in the reasonably foreseeable future.

Evidence

Evidence Before The Court

With respect to contradictions, inconsistencies and omissions, the Guidelines state:Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[27][27]At [27]–[28].New claims and evidence Section 5AAA of the Act clarifies that it is the responsibility of applicants to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for applicants to make their own case.[28][28]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187]. Applicants are also expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. Two obligations here are particularly relevant:i.The ongoing requirement under s.104 of the Act for applicants to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity; andii.Section 423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that applicants do not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence. Applicants are, therefore, required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.Third country protection I am mindful of the statutory exception to Australia’s protection obligations at s.36(3) of the Act which is as follows:Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. I also note the restriction that applies to this exception at s.36(5) of the Act which is as follows:Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that: (a) the country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.DECISION MAKING FRAMEWORKPresident’s Direction I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:· that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and· that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2][1]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).[2]At [8.1]. As noted above, I exercised the discretion to hold the second hearing via MS Teams video over two dates in August 2020. These hearings were held during the COVID-19 pandemic. I determined that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants and their dependent child. I note that this practice accords with the observations of the Tribunal as constituted in the related cases Tribunal Refugee Refs: 1816541 and 1820632 as follows:[3]As observed by the Federal Court on several occasions since the commencement of the COVID-19 pandemic, the legal system must continue to function, and parties may have to accommodate less conventional approaches to hearings. Whether a hearing can or should proceed through online platforms is a matter that should be determined on the facts of each case.[4] In this case, I formed the view that the matter could proceed through MS Teams. Both applicants had good access to the internet, there were few documents to consider, there was a private place in their home for the hearing to be conducted and arrangements could be made for an interpreter to assist them.[3]1816541 (Refugee) [2020] AATA 3476 (3 September 2020) at [6]; and 1820632 (Refugee) [2020] AATA 3477 (3 September 2020) at [5] per Deputy President Redfern. (Extract taken from Tribunal Ref: 1816541 at [6]).[4]“Refer for instance Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Perram J); ASIC v GetSwift Limited [2020] FCA 504 (Lee J) [7] [33] and Tetley v Goldmate Group Pty Ltd [2020] FCA 913 (Bromwich J) [16].” In making similar procedural and logistical arrangements in this matter, I had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the second hearing was not to be conducted by video. I also note that a lengthy period was allowed to the applicants following their decision to terminate the engagement that they had with their former registered migration agent before scheduling the second hearing. I am satisfied that, in the circumstances applicable to this application for review, the applicants were given a fair opportunity to give evidence (including interviewing a nominated witness (by telephone) who was resident in [Country 1]) and a fair opportunity to present arguments, including by means of opportunities to provide further written submissions, in the format which was utilised for each hearing. I was able to interact with the applicants, and all parties were able to maintain line of sight and maintain appropriate communication throughout each of the proceedings.Applicant credibility

Ratio Decidendi

Legal Principle Established

This qualification, which forms the legal basis for the delegate’s decision in the first instance, is considered further in detail below.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEFirst hearing At the first hearing with the Tribunal on 21 January 2020, it became apparent that the personal circumstances of the applicants had materially changed since the initial application for protection was lodged. The applicants were now legally married and had become parents. I reminded the applicants of their ongoing obligation at s.104 of the Act to notify the Department of relevant changes of circumstances relating to a visa application. I asked the applicants if they had advised the Department of these changed circumstances and they indicated that their representative had not made them aware of this obligation. I pointed out that the obligation to notify was on the applicant under the Act. The applicants’ representative confirmed that they had knowledge of the relevant changes to the applicants’ circumstances before the hearing. I pointed out to the representative that it was not consistent with their obligations as a registered migration agent to firstly fail to provide appropriate advice to their client about obligations under s.104 of the Act and then to fail to assist the Tribunal ahead of the hearing by providing submissions outlining the nature of the changed circumstances and implications for the review application. It was confirmed at the time that no application for protection had, to that point, been lodged on behalf of the infant [child] of the applicants. At this point, the first hearing was concluded in order to allow the applicants an opportunity to take further advice and comply with their s.104 notice obligations. Subsequent to the first hearing, the Tribunal received copies of; a [State 1] Marriage Certificate in the names of the applicants, dated [Date 2]; and, a [State 1] Birth Certificate in the name of [their child] dated [Date 1] showing the applicants as the parents of this child. On the basis of this evidence, I find that the applicants were lawfully married in [State 1] on [Date 2] and that they are the natural parents of an infant child, born in [State 1] on [Date 1]. As discussed above, following the first hearing (on 7 February 2020) the Tribunal was notified that the applicants had dispensed with the services of their previous registered migration agent. Presumptive citizenship of the applicants’ infant [child] The Kenya Citizenship and Immigration Act, 2011 (Ke) at s.7 provides that:A person born outside Kenya shall be a citizen by birth if on the date of birth that person’s mother or father was or is a citizen by birth.